Docket No: 6455-19
Ref:   Signature Date

From:  Chairman, Board for Correction of Naval Records 
To:    Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD OF FORME              
 
Ref:   (a) 10 U.S.C. § 1552 
       (b) SECNAVINST 5420.193 
       (c) SECDEF Memo, “Supplemental Guidance to Military Boards for Correction of Military/Naval              Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD,” 3 September               2014 
       (d) PDUSD Memo, “Consideration of Discharge Upgrade Requests Pursuant to Supplemental                    Guidance to Military Boards for Correction of Military/Naval Records  by Veterans                    Claiming PTSD or TBI,” 24 February 2016  
       (e) PDUSD Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for                  Correction of Military/Naval Records Considering Requests by Veterans for Modification of            their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,”              25 August 2017 
       (f) USD Memo, “Guidance to Military Discharge Review Boards and Boards for Correction of                 Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July             2018 
 
Encl:  (1) DD Form 149 with attachments 
       (2) BCNR, Advisory Opinion of 22 Oct 20 
 
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that her characterization of service be upgrade to honorable. 
   
2.  The Board reviewed Petitioner's allegations of error and injustice on 2 November 2020, and, pursuant to its regulations, determined that the corrective action indicated below should be taken.  Documentary material considered by the Board consisted of the enclosures, relevant portions of her naval service records, and applicable statutes, regulations, and policies, and relevant Advisory Opinion. 
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows:   
 
    a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. 
 
    b.  Although enclosure (1) was not filed in a timely manner, the statute of limitation was waived in accordance with references (d) and (e).   
 
    c.  Petitioner enlisted in the Marine Corps and began a period of active duty on 26 November 1990. 
 
    d.  On 15 July 1992, Petitioner received nonjudicial punishment (NJP) for wrongful use of marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ).  She had tested positive for tetrahydrocannabinol (THC) twice within a relatively short period, with the second test reflecting a decreased amount of THC in her system relative to the first test.   
 
    e.  Petitioner elected to appear before an administrative separation board.  During the hearing, Petitioner made a sworn statement that she was shocked she tested positive and that she does not use drugs.  She also suggested that she may have innocently ingested the drugs through an alcoholic tea beverage while visiting a friend and a fellow Marine who lived in town, and stated that during one visit her friend’s cousin was over and “they tried to get [her] to have sex with both of them.”  On 25 September 1992, the administrative separation board determined that Petitioner committed the misconduct of drug abuse and recommended that she be discharged under other than honorable (OTH) conditions.     
 
    f.  On 30 November 1992, Petitioner was discharged from the Marine Corps and received an OTH characterization of service and a reentry (RE) code of RE-4B. 
 
    g.  Petitioner asserts that she was drugged and raped by two fellow Marines in the summer of 1992.  The letter of support provided by the  () asserts that when she reported this event to her command, they conspired to get her out of the Marine Corps so that she would not tarnish its reputation by ordering a company-wide drug test for the first time in months.  The letter further asserts that the level of THC found in her system was so low that it would have been impossible for her to have smoked it, lending credibility to her claim of innocent ingestion. 
 
     h.  The Department of Veterans Affairs (VA) has award Petitioner a 100 percent service-connected disability rating for post-traumatic stress disorder (PTSD) arising out of her military sexual trauma (MST).  Upon request, Petitioner provided VA clinical records from December 2018 to July 2019 documenting her treatment for PTSD related to her MST. 
 
     i.  As part of its review process, the Board’s physician advisor, who is a medical doctor and Fellow of the American Psychiatric Association, reviewed Petitioner’s in-service and post-service medical records and provided an advisory opinion (AO).  The AO noted that although Petitioner’s in-service records contain no direct evidence that she suffered an event indicative of MST or was diagnosed with PTSD, Petitioner provided a credible history detailing the MST.  Additionally, the AO noted that Petitioner described behaviors and psychological symptoms following the event were indicative of those that are often experienced by MST victims.  Accordingly, the AO found sufficient indirect evidence that Petitioner exhibited behaviors associated with MST victims, as well as early symptoms of PTSD, and that her misconduct may be mitigated by her experience of MST/PTSD.   
 
CONCLUSION 
 
Based upon the assertions that Petitioner suffered an MST that resulted in PTSD, Petitioner’s application was reviewed in accordance with references (c) through (e).  Accordingly, the Board applied liberal consideration to Petitioner’s assertion of PTSD and MST, and the effect that this experience may have had upon her conduct.  Based upon this review and liberal consideration, the Board found that Petitioner did experience MST while in the Marine Corps and subsequently developed PTSD as a result.  The Board also determined that the misconduct for which Petitioner was discharged was mitigated by this experience. 
 
In addition to applying liberal consideration to Petitioner’s MST and PTSD experience, the Board also carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in accordance with reference (f).  These included, but were not limited to, Petitioner’s assertion that she was drugged and raped by two fellow Marines; Petitioner’s assertion that her command conspired to remove her from the Marine Corps to avoid tainting the reputation of the institution; Petitioner’s assertion of innocent ingestion of marijuana and low level of THC in her system; that Petitioner developed and continues to suffer from PTSD as a result of her MST experience; Petitioner’s assertion that she was repeatedly nominated for Marine of the Month during her enlistment; and the passage of time since Petitioner’s discharge.  Based upon this review, the Board determined that relief is warranted in Petitioner’s case in the interests of justice.     
 
Although the Board determined that relief is warranted in Petitioner’s case, it determined that Petitioner’s characterization of service should be upgraded to general (under honorable conditions), rather than to honorable as requested by Petitioner.  In making this determination, the Board found insufficient evidence to support Petitioner’s contention of innocent ingestion, as the low level of THC in her system, which the VSA asserted as proof of innocent ingestion, could have been the result of an earlier use.  In this regard, the Board did not doubt the Petitioner’s sincerity, but rather simply had insufficient evidence to conclude that Petitioner’s positive drug test was the result of innocent ingestion.  Given that Petitioner’s discharge was based upon misconduct and recommended by an administrative separation board, the relatively short period of her enlistment, the Board determined that an upgrade to her characterization of service to general (under honorable conditions) is appropriate under the totality of the circumstances.  The Board believed this relief to be appropriate, in part, because a general discharge is not adverse.  The Board also determined that Petitioner’s narrative reason for separation should be changed to “Secretarial Authority.” 
 
RECOMMENDATION: 
 
In light of the above, the Board recommends that the following corrective actions be taken: 
That Petitioner be issued a new DD Form 214 reflecting that she was discharged with a general (under honorable conditions) characterization of service, that the narrative reason for her separation was “Secretarial Authority,” and that her SPD code was “JFF.” 
 
That a copy of this report of proceedings be filed in Petitioner’s naval record. 
 
That, upon request, the VA be informed that Petitioner’s application was received by the Board on 27 June 2019. 
 
4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 
 
5.  Pursuant to the delegation of authority set out in reference (b) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.